Wilson v. People
| Decision Date | 10 April 1872 |
| Citation | 24 Mich. 410 |
| Court | Michigan Supreme Court |
| Parties | Levi Wilson v. The People |
Submitted on Briefs April 2, 1872.
Error to Cass circuit.
Judgment reversed and the prisoner discharged.
Clisbee & Smith, for plaintiff in error.
Dwight May, Attorney-General, for the People.
Plaintiff in error was indicted for an assault upon one Lazarus Cumbo with intent to murder him. Under instructions from the court authorizing such a finding, the jury brought in a verdict of guilty "of an assault with intent to kill." On this verdict sentence was given of imprisonment in the state prison. Error is assigned on this sentence, as well as upon other matters, and the principal question is whether the verdict authorized it.
The statutes of this state do not expressly provide, as those of some other states do, for the punishment of assaults with intent to kill. They punish assaults with "intent to commit the crime of murder," and with intent to commit "burglary or any other felony." The error assigned rests upon the ground alleged, that this verdict does not show an assault with intent to commit any felony.
Where a specific intent is required by law to complete a crime, no description of that crime can be complete without it. The statutes in question all contemplate the complete commission of one crime which is a misdemeanor, with the intent to commit another complete crime which would be a felony. And if the act described as intended, is not so described as to show it to be a felony, the crime actually completed must stand as if no such design existed. The assault not qualified by a felonious intent is a simple misdemeanor.
It cannot be maintained that an assault, with intent to commit a felony, was in itself felonious at common law. And we have not been able to find any such specific crime as an assault with intent to kill included by the common law as a separate form of crime. It stands purely on a statutory footing.
This verdict can only stand as a statutory conviction, on the same grounds which would maintain it if the indictment had been drawn in the same terms. It is good if an indictment would be good specifying the only intent to have been an intent to kill. If an intent to kill is an intent to commit felony, then the case is clear. If not, it is difficult to see on what principle the verdict amounts to any more than a conviction of simple assault.
It needs no argument to show that an indictment for "killing" a person would not amount to a charge of felonious killing, because killing may be lawful or excusable. It is not unlawful in some cases to slay a person intentionally; and an intent to kill, therefore, is not of necessity an unlawful or felonious intent.
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